Obama Administration Cuts 287(g) in Half

The Obama Administration effectively dismantled the 287(g) immigration enforcement program when it declared just before the holidays that it would not be renewing any task force model agreements with local law enforcement agencies in 2013. (ABC News, Dec. 27, 2012; CNS News, Dec. 26, 2012)

The 287(g) program allows U.S. Immigration and Customs Enforcement (ICE) to enter into agreements with local law enforcement agencies to “deputize” or cross-designate law enforcement officers to act as immigration agents within their jurisdictions. There are two primary types of 287(g) agreements, task force and jail. The task force model— the type of agreement the Administration now refuses to renew—allows officers participating in criminal task forces (such as drug or gang) to proactively respond to, identify, and remove illegal aliens anywhere within their jurisdiction.

Attempting to hide the significance of its actions, the Administration slipped its announcement that it will eliminate the agreements into a small paragraph of an ICE press release announcing year-end removal numbers. (See ICE Press Release, Dec. 21, 2012) The release stated: “In addition, ICE has also decided not to renew any of its agreements with state and local law enforcement agencies that operate task forces under the 287(g) program.” (Id.)

The Administration justified its decision to end the task force agreements by claiming other programs achieve the same purpose as 287(g) but cost less money. “ICE has concluded that other enforcement programs, including Secure Communities, are a more efficient use of resources for focusing on priority cases.” (Id.)

However, the Administration’s decision to use Secure Communities in lieu of renewing the 287(g) task force agreements ignores the fact that the two programs are fundamentally different. The 287(g) program trains local officers to determine whether an individual is lawfully present, including those with no prior contact with immigration services. Secure Communities, while critical, can only call attention to aliens after they have been booked into jail and if their fingerprints are already in immigration databases.

For Secure Communities to identify an illegal alien, that alien must have already come into contact with law enforcement. Moreover, the contact must have resulted in the taking of fingerprints, the fingerprints must have been taken digitally (a process which became only commonplace in the last several years), and then the fingerprints must have been placed into the appropriate federal immigration database. In contrast, the 287(g) program trains officers to obtain all data relevant to determining an individual’s immigration status, often through personal interviews. This training, which occurs at the Federal Law Enforcement Training Center, allows 287(g) officers to identify illegal aliens who have no preexisting criminal record. As a result, 287(g) officers can identify illegal aliens that Secure Communities simply cannot, making the programs complementary rather than a replacement for one another.

Despite the effectiveness and popularity of the 287(g) program, the Obama Administration has from the beginning been working to dismantle it. Just months after taking office, President Obama restricted the 287(g) program to ensure participating law enforcement agencies enforced immigration laws only against “dangerous criminal aliens.” (See DHS Press Release, July 10, 2009) More recently, the Administration has refused to enter into new task force agreements with local departments, suspended those it deems “least productive,” and proposed cutting funding for the program by 25 percent. (See DHS FY2013 Budget in Brief at p.25)

Currently, 25 law enforcement agencies around the country employ the task force model. (See ICE Fact Sheet, Oct. 16, 2012) Of the remaining jail agreements, 33 are also set to expire Dec. 31. According to ICE officials, the agency has notified these law enforcement agencies that their contracts will continue until June 30, while ICE continues to review agreements to see which ones, if any, to continue. (89.3KPCCSouthern California, Dec. 27, 2012)

In the latest move by the Obama Administration to thwart immigration enforcement, U.S. Immigration and Customs Enforcement (ICE) Director John Morton issued a new policy memo limiting the circumstances under which ICE agents can issue detainers and take custody of illegal aliens in the hands of local law enforcement officials. (See ICEPolicy Memo, Dec. 21, 2012; see also ICE Press Release, Dec. 21, 2012)

Under federal regulation, detainers allow ICE agents to request that jail officials maintain custody of an alien for up to 48-hours to allow ICE to pick up the alien for arrest and removal. (See 8 C.F.R. 287.7; see also INA § 287)

Issued just days before Christmas, the new detainer policy limits the instances in which ICE can lodge detainers against aliens to only those meeting the Administration’s narrow enforcement priorities. As a result, ICE agents can no longer take an alien into custody if the alien’s only violation of the law is being in the country unlawfully—they must now have committed an offense independent of their illegal status. Specifically, the policy instructs that ICE agents should issue a detainer against an alien only where they have reason to believe the alien is subject to removal and if one or more of the following conditions apply:

the alien has previously been convicted of or charged with a felony;

the alien has three or more prior misdemeanor convictions;

the alien has a prior misdemeanor conviction or has been charged with a misdemeanor offense that involves—

violence, threats, or assault;

sexual abuse or exploitation;

driving under the influence of alcohol or a controlled substance;

unlawful flight from the scene of an accident;

unlawful possession or use of a firearm or other deadly weapon;

the distribution or trafficking of a controlled substance, or

other significant threat to public safety;

the alien has been convicted of unlawful entry or has illegally reentered the U.S. after a previous removal or return;

the alien has an outstanding order of removal;

the alien has been found by an immigration officer or an immigration judge to have knowingly committed fraud;

the alien otherwise poses a significant risk to national security, border security, or public safety.

Although the list appears expansive, the Administration makes a point to protect aliens with multiple misdemeanor convictions. In a footnote, Director Morton clarifies that, “three or more convictions for minor traffic misdemeanors or other relatively minor misdemeanors alone should not trigger a detainer unless the convictions reflect a clear and continuing danger to others or disregard for the law.” (Id.) (emphasis added)

The previous detainer guidance replaced by the new policy was less restrictive and granted ICE agents more flexibility in determining when to issue detainers. Under that guidance, agents could issue a detainer so long as: 1) they had reason to believe the alien was subject to removal; and 2) issuing the detainer otherwise appeared to advance the priorities of the agency. (See ICE Detainer Policy 10074.1 § 4.2, Aug. 2, 2010)

The new detainer policy further illustrates the Obama Administration’s refusal to enforce immigration law as written by Congress, opting only to enforce the law against aliens deemed a “priority.” “Smart and effective immigration enforcement relies on setting priorities for removal and executing on those priorities,” said Director Morton. “In order to further enhance our ability to focus enforcement efforts on serious offenders, we are changing who ICE will issue detainers against.” (See ICE Press Release, Dec. 21, 2012)

The Administration pulled a similar move between Christmas and New Year’s last year, changing its detention policy to allow detainers to become effective only upon an alien's conviction. (See ICE Press Release, Dec. 29, 2011; see also FAIR Legislative Update, Jan. 3, 2012)

Amnesty Negotiations Continue During the Holidays

According to the Chicago Sun-Times, long-time amnesty advocate Rep. Luis Gutierrez (D-IL) has been reaching across the aisle to influential Republicans in an effort to move a comprehensive immigration reform bill through Congress in 2013. (Chicago Sun-Times, Dec. 26, 2012)

The Chicago paper reports that Gutierrez met with Sen. Marco Rubio (R-FL)—who has become an influential leader within the pro-amnesty wing of the Republican Party—the Thursday before Christmas. “I had a good meeting with Sen. Rubio and I look forward to talking to him [] early and often in the New Year. As I have said, he can play a very important role on the immigration issue and will help the Republican Party address the immigration issue in a productive way….” Gutierrez said of the meeting. (Id.)

Sen. Rubio's spokesman Alex Conant confirmed that a meeting between the Senator and Rep. Gutierrez took place, but declined to offer any details, stating only that Sen. Rubio “really wants to be part of the solution….” (Id.)

Former GOP Vice-Presidential nominee, Rep. Paul Ryan (R-WI), also met with Rep. Gutierrez to discuss comprehensive immigration reform the previous week. “What we did was just kind of catch up,” Gutierrez told the Chicago Sun-Times. “Ryan wants to do the right thing,” he added. (Id.)

President Obama has made no secret of his intention to push amnesty for illegal aliens in the beginning of his second term. His Administration is already planning a “social media blitz” this coming month to shore up support for their efforts. (LA Times, Dec. 7, 2012)

Referring to the DACA program as “prosecutorial discretion extended in a blanket fashion,” Iowa DOT officials said driver’s licenses or ID cards would not be issued to DACA grantees because they do not have lawful status. “Under Iowa Code…a driver’s license or nonoperator ID card shall only be issued to a foreign national authorized to be present in the United States,” reads a statement issued by DOT Director Paul Trombino. (DOT Press Release, Dec. 27, 2012) “Therefore, the Iowa DOT does not have the legal authority under current Iowa law to issue a driver’s license or nonoperator ID card to a person granted Deferred Action for Childhood Arrivals status,” the statement concluded. (Id.; see also Iowa Code §§ 321.182, 321.190 and 321.196)

The statement came in response to a letter from the pro-amnesty American Civil Liberties Union (ACLU) asking Mr. Trombino to confirm that DACA recipients would be granted driver’s licenses. (See ACLU Press Release and Letter, Oct. 17, 2012) The Iowa Chapter’s Legal Director, Randall Wilson, said he was surprised by the DOT’s decision not to grant the licenses. “These people have been granted status to stay in the United States for a period of time, and whether you want to call it illegal, legal or indeterminate, it doesn't matter. They are here, so this issue needs to be addressed, either legislatively or in the courts,” Wilson said. (Des Moines Register, Dec. 27, 2012)

Iowa joins Nebraska, Arizona, and Michigan in refusing to grant licenses or other state benefits to DACA beneficiaries.